As Appalachian coal production continues its drastic decline, West Virginia’s coal-producing counties are not only losing people as lifelong residents are forced to flee their homes in order to find work, but in many cases, they’re also relinquishing millions of dollars from their budgets.

As Appalachian coal production continues its drastic decline, West Virginia’s coal-producing counties are not only losing people as lifelong residents are forced to flee their homes in order to find work, but in many cases, they’re also relinquishing millions of dollars from their budgets.

At a July 22 hearing of a state Senate Judiciary subcommittee, the West Virginia Coal Association presented information about what it sees as a need to relieve responsible coal producers from paying for other producers' misfortunes or misdeeds.

But it's unclear whether a state legislative approach to what West Virginia Coal Association Vice President Jason Bostic describes as "disentangling" the enforcement of separate mining and clean water laws is viable.

Bostic summarized the history.

The federal Surface Mining Control and Reclamation Act of 1977, or SMCRA, established environmental requirements for coal mining nationwide.

West Virginia was approved for "primacy" under SMCRA by the federal Office of Surface Mining Reclamation and Enforcement, or OSMRE, in 1981, giving it day-to-day responsibility for the issuance of permits, coal mine inspections and other activities with minimal federal oversight.

With that was approved the state's proposed "alternative bonding system." In a "full-cost" bonding system, a coal operator posts a bond for the full estimated amount of reclamation of a mined site and that bond is returned following full and successful reclamation.

The state preferred an alternative system in which an operator would post, at the time, a minimal "penal" bond of $1,000/acre; that would be supplemented, where insufficient to cover the cost of reclamation at bond-forfeited sites, by a 3-cent-per-ton tax on coal that went into a Special Reclamation Fund. Such an alternative bonding system relieves operators of the burden of large bonds, but it creates the conditions for responsible operators to pay when irresponsible or unlucky operators forfeit.

As of July 1, 2012, the Special Reclamation Tax is 27.9 cents per ton — increased to nearly 10 times its original level over time due to additional responsibilities that lawsuits placed on the West Virginia Department of Environmental Protection for the treatment of water discharges at bond forfeiture sites and due to increases in the numbers and kinds of pollutants the Environmental Protection Agency requires to be managed.

Bostic argued that bonding is intended for land reclamation and a minimal level of water treatment only, as required under SMCRA.

"Entangling" with that the more complex treatment of water discharges that is required under the Clean Water Act shifts liability from irresponsible operators — who could be pursued under the powerful enforcement measures available under the act, including seizure of assets and criminal charges — to responsible operators who are maintaining their operations and paying the ever-higher tax.

The DEP is in effect shielding irresponsible operators from Clean Water Act enforcement, he said.

"Instead of completing reclamation and treating water as he should, an operator will say … I'm going to go lie on a beach," he said. "That's a very bizarre and counterproductive result that was never intended under either of these programs."

Other states, Bostic said, don't treat water at bond-forfeited sites.

He told the Senate subcommittee that the Coal Association wants to see the state pursue defaulting operators under the Clean Water Act. It also wants DEP's and the Special Reclamation Fund's liability limited to land reclamation and to minimal water quality responsibility.

But it's unclear that the state Legislature can make that happen.

In lawsuits brought by the West Virginia Highlands Conservancy in federal court and decided in 2009 — in the Northern District of West Virginia, in an opinion written by Judge Irene M. Keeley, and in the Southern District, in an opinion written by Judge John T. Copenhaver — the DEP was found violating the federal Clean Water Act at its bond forfeiture sites. The Keeley opinion was upheld in 2010 under appeal from the WVDEP in the 4th circuit.

In other words, federal courts have decided DEP is responsible at bond forfeiture sites for meeting federal Clean Water Act requirements.

Reversing that legal and regulatory history would be complicated, in the opinion of Cindy Rank, who chairs the Highlands Conservancy's Mining Committee.

DEP Mining Director Tom Clarke said at the hearing that, in the five years from 2006 to 2011, 95 coal mine bonds were forfeited out of about 2,000 mines.

"I don't think there are too many lying on the beach," Clarke said. "The problem we have in going after former mine operators who forfeit these bonds is that most of them have gone bankrupt, so there's really not anybody to go after … (and) that's difficult and requires a good bit of investigative manpower we don't have the resources for."

"The Office of Surface Mining comes in and says it wants to take over our surface mining program," Clarke said. "At that point, the coal industry is dealing with federal instead of state bureaucracy and I think they'd generally prefer to deal with state."

Clarke also spoke in support of legislation that failed in this year's regular legislative session.

House Bill 2826, sponsored by Delegate Rupert Phillips, D-Logan, and Senate Bill 424, sponsored by Sen. Doug Facemire, D-Braxton, would have released DEP from its responsibility for bond forfeiture sites that were reclaimed by 2002 and which could be subject to water quality requirements that came into play since. The bills also would have mandated the establishment of rules for DEP's future release from responsibility for reclaimed sites.

The subcommittee will hear next month on the Clean Water Act responsibility issue from landowner associations.